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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Thursday, April 27, 2017

Outrageous vulgarities no basis to fire employee during union fight

The employees at a catering company in New York City were trying to organize a union. Management, of course, was against this. One employee insulted his supervisor on Facebook, using unprecedented vulgarities in also insulting his supervisor's mother. Management, of course, fired him. Is this a case? You're Goddamned right it's a case.

The case is NLRB v. Pier Sixty, LLC, decided on April 21. Two days before the workers voted to unionize, a supervisor by the name of McSweeney addressed them, exhibiting some degree of disrespect for the staff. Shortly thereafter, one employee, Perez, wrote this on Facebook: "Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!" Perez challenged his termination as retaliation for protected union activity. The NLRB agreed, and the Second Circuit (Cabranes, Chin and Kearse) affirms. So the employee does have a case.

Employers cannot fire people for engaging in union activity. "But even an employee engaged in ostensibly protected activity may act in such an abusive manner that he loses the protection of the NLRA." Is Perez's Facebook post sufficiently abusive to warrant his termination? The Court of Appeals says it is not, for the following reasons:

First, even though Perez’s message was dominated by vulgar attacks on McSweeney and his family, the “subject matter” of the message included workplace concerns—management’s allegedly disrespectful treatment of employees, and the upcoming union election. Pier Sixty had demonstrated its hostility toward employees’ union activities in the period immediately prior to the representation election and proximate to Perez’s post. Pier Sixty had threatened to rescind benefits and/or fire employees who voted for unionization. It also had enforced a “no talk” rule on groups of employees,
including Perez and Gonzalez, who were prevented by McSweeney from discussing the Union. Perez’s Facebook post explicitly protested mistreatment by management and exhorted employees to “Vote YES for the UNION.” Thus, the [NLRB] Board could reasonably determine that Perez’s outburst was not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment in the period before the representation election.

I love this reasoning. It takes an outrageous set of facts and makes it legal. And this is from three judges before whom I have argued many times and I seriously doubt they use language like this even in private conversation.

Moreover, the Court says, the Facebook post is not too offensive because the workplace was rife with this kind of foul language, for which employees are rarely written up. And no one ever gets fired for using this language. McSweeney also talks this way to his employees, calling them "motherfuckers" and "fucking stupid." While "one could draw a distinction between generalize scatology (or even cursing at someone) and, on the other hand, cursing someone's mother and family, ... one could reasonably decide, as the ALJ did in this case, that Perez's comments 'were not a slur against McSweeney's family but, rather, an epithet directed to McSweeney himself." Again, this is my kind of legal reasoning, which footnotes to scholarly works about how "different groups respond to the same words differently" and "among some groups, certain maternal insults could be perceived as 'fighting words.'" One book says that "all over the world groups of people have their ways to insult mothers or use mothers to insult others."

The final round of legal reasoning goes like this:

Third, the “location” of Perez’s comments was an online forum that is a key medium of communication among coworkers and a tool for organization in the modern era. While a Facebook post may be visible to the whole world, including actual and potential customers, as Pier Sixty argues, Perez’s outburst was not in the immediate presence of customers nor did it disrupt the catering event. Furthermore, Perez asserts that he mistakenly thought that his Facebook page was private and took the post down three days later, upon learning that it was publicly accessible.